Experiments in laboratory animals demonstrate that exposure to NMP during pregnancy leads to adverse developmental outcomes in the offspring, such as low birth weight, skeletal malformations, and mortality (see here and here).

EPA’s assessment focused exclusively on NMP exposure from its presence in products used to remove paint and other coatings. Because of NMP’s potential to disrupt fetal development, EPA assessed exposures in women of childbearing age.

EPA found that exposure to NMP-based paint strippers in women of childbearing age beyond four hours per day presents risks that cannot be mitigated from use of protective gear such as gloves and respirators. Risks obviously could be greater, even for shorter exposure times, if protective equipment is not consistently used. Read More »

By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances Control Act (TSCA) is the extent of federal preemption of state authority. The range of positions on this is truly gigantic, from zero preemption (Senator’s Boxer’s consistent position) at one end of the spectrum to full-field preemption effective upon enactment (the position espoused by some in industry).

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) has landed somewhere in the middle of this spectrum, with some stakeholders saying it still goes too far and others saying not far enough. And wherever you land on that question, it should be acknowledged that preemption in the bill is more extensive than under current TSCA, but much less extensive than it was in the predecessor to the Lautenberg Act, 2013’s Chemical Safety Improvement Act (CSIA).

There has been a lot of confusion surrounding preemption in the Lautenberg Act. So in this post, I describe how preemption works under the bill, and what is and is not preempted.

In the sidebar is a summary of the key preemption provisions of the Lautenberg Act. The rest of this post is a deeper dive for those who want one.

Preemption under the Lautenberg Act

The first thing to recognize is that any preemption that applies is always chemical-specific and directly matches the nature and scope of the triggering federal action. That is, preemption attaches only when EPA acts on the same chemical that has been or would be subject to a state action, and only when EPA considers the need for or takes the same type of action as has been or would be taken by a state. And preemption is limited to the scope of the EPA action (for example, the specific uses of a chemical considered by EPA).

Outside of these boundaries, states are free to act on chemicals. The new system would be basically the same as the current system except when EPA decides a chemical is a high priority and may require federal action.

Below I discuss the major components to the preemption provisions of the Lautenberg Act.

(1) State actions subject and not subject to preemption

Types of state actions that are subject to preemption:

If EPA requires a company to do testing, states can’t require it to test to generate the same information.

If EPA requires a company to notify EPA before beginning a particular use of a chemical, states can’t require notification of that same use.

If EPA places prohibitions or other restrictions on the production, processing, distribution or use a chemical, or decides that such restrictions are not necessary, states cannot place restrictions on the same uses or to address the same health/environmental concerns.

States cannot co-enforce, i.e., enact and enforce requirements identical to those taken by EPA.

Types of state actions that are not preempted:

State requirements for reporting, monitoring or biomonitoring, or other information collection, unless already required under TSCA or another Federal law.

State actions to prohibit or restrict a chemical EPA has acted on if:

the state is acting on a use of the chemical that EPA did not consider or that does not fall under EPA’s TSCA jurisdiction (Note: TSCA does not cover personal care products, cosmetics, food packaging and food additives, which are uses regulated by FDA, or pesticides, which are regulated by EPA under a different law);

the state is acting under delegated authority under another federal law (e.g., the Clean Air Act);

the state is acting under a state law but to address a different health or environmental concern than EPA’s action under TSCA addresses (e.g., a restriction on a greenhouse gas); or

the state obtains a waiver from EPA to act even where EPA intends to act or has acted.

In other words, even if EPA acts on a high priority chemical, states can still restrict it to deal with other goals – like limiting global warming, clean air or water, or some toxics use not covered by the federal action.

taken under a state law adopted on or before August 31, 2003 (this provision has the effect of grandfathering in California’s Proposition 65, which requires warning of the presence of certain chemicals in products or other settings).

(2) Preemption of state actions on high-priority chemicals

Preemption can occur at two distinct points in the bill’s process for EPA evaluation of high-priority chemicals:

Preemption of certain pre-existing as well as new state actions on a chemical occurs when EPA takes final action on that same chemical.

Preemption of certain new state actions on a chemical occurs when EPA starts work on that same chemical.

Preemption that occurs at final agency action on a high-priority chemical

Under the Lautenberg Act, a final agency action on a high-priority chemical triggers preemption of certain state actions, including actions taken after 2014 or taken under a law adopted after August 31, 2003, as well as potential future actions. Final agency action is either: (1) a final safety determination by EPA that a chemical meets the bill’s safety standard, or (2) if EPA finds a chemical does not meet the safety standard, a final rule regulating that chemical (which must either ban/phase out the chemical or impose restrictions sufficient for it to meet the safety standard), as of its effective date.

This trigger for preemption is similar to that provided under current TSCA. Importantly, the scope of this preemption is directly tied to the scope of EPA’s safety assessment and determination and, where required, its rule regulating the chemical. States remain free to act on any uses or health or environmental concerns not explicitly addressed by EPA.

All of the exceptions described earlier apply, as well as the ability of a state to obtain a waiver. Designations of a chemical as low-priority no longer have any preemptive effect, which was the case under the original 2013 bill, CSIA.

Preemption that occurs when EPA starts work on a high-priority chemical

Perhaps the most controversial aspect of preemption under the Lautenberg Act is that once EPA initiates work on a chemical it has designated as high-priority, states cannot undertake new actions to restrict that chemical. (Note, however, that states can take new actions to address uses and concerns that are not included in the scope of EPA’s assessment, and can continue to take other actions that do not restrict the chemical. All of the exceptions described earlier apply, as well as the ability of a state to obtain a waiver.)

The trigger for preemption of new state actions is the commencement of EPA’s safety assessment of a chemical, an early step in the process. Under the bill, deadlines apply to each step in EPA’s evaluation of a high-priority chemical: EPA has up to 3 years to complete a safety assessment and determination, and up to 2 more years to issue a risk management rule where required; these deadlines can be extended up to 2 more years in the aggregate upon showing of cause by EPA.

In this post, I’ve tried to provide a straightforward analysis of how preemption would work under the Lautenberg Act. Striking the right balance on this issue has proven to be both exceedingly difficult and critical to garnering the bipartisan support needed to pass a law. As with many compromises, no one is likely to be happy with the outcome.

Of course, preemption is only one part of the Lautenberg Act, and needs to be viewed in the broader context of all of the new authorities and mandates it would provide EPA. Click here for our broader analysis of the bill.

“It’s not that members of Congress don’t work hard…yet they regularly manage to avoid accomplishing anything even on those matters on which they overwhelmingly agree,” observed Melinda Hennebergert this morning in Bloomberg Politics.

She was talking, in part, about the new bill to reform America’s broken chemical safety law. Everyone agrees the current system is a national disgrace, preventing the EPA from banning even known carcinogens like asbestos. Yet there’s fierce opposition to the only legislative vehicle that could successfully change things.

Hennebergert notes that some opponents to the bill, which has co-sponsors across the ideological and partisan spectrum, object to the fact that it is a compromise necessary to pass Congress. She calls it the “half-a-loaf or none conundrum” and says that “in the increasingly rare cases of bipartisan agreement, paralyzing pushback” now seems inevitable.

Her frustration is clear, especially since “it has already been 26 years since any environmental bill of this magnitude (1990's Clean Air Act) has passed.”

She notes that some opponents of the bill favor alternative legislation – a bill without bipartisan sponsors or the compromises necessary to gain traction. It’s an all or nothing approach and, with it, “nothing is just what citizens may get.”

The question is, can Congress prove her wrong and get something big done to protect public health and the environment?

The lead editorial in today’s Santa Fe New Mexican pushes back against the grossly unfair criticism of Senator Tom Udall because he is backing critically needed legislation to reform our nation’s nearly 40-year-old chemical safety law.

The editorial is an island of sanity in a sea of hyperbolic partisan rhetoric unleashed this week against the strongly bipartisan Frank R. Lautenberg Chemical Safety for the 21st Century Act. As the editorial makes clear, Senator Udall deserves the lion’s share of the credit for negotiating over the past two years to secure major concessions from the chemical industry and greatly improve the public health protections in this legislation. A testament to that success is the fact that 7 other Democratic Senators joined Senator Udall as original cosponsors of the bill right out of the gates, and many more are seriously looking at it.

Read the editorial to see for yourself why, despite all the noise out there about this bill, it’s a good thing Senator Udall has done.

Environmental Defense Fund issued the following press release in response to today's introduction of The Frank R. Lautenberg Chemical Safety for the 21st Century Act [UPDATE: The bill number is S. 697]. We have also prepared an accompanying factsheet and detailed bill analysis.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act Would Overhaul Weak Federal Law, Provide New Powers to Require Safety of All Chemicals

(Washington DC, March 10, 2015)—Senators Tom Udall (D-NM) and David Vitter (R-LA), together with seven Democratic and eight Republican cosponsors introduced legislation today to fix a badly broken system that is currently failing to protect Americans against thousands of untested or hazardous chemicals used in all kinds of everyday products, from cleaning products, to clothing, to couches.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act would overhaul the nearly 40-year-old Toxic Substances Control Act (TSCA), the nation’s primary federal chemical safety law, establishing strong new protections to ensure the safety of chemicals in everyday products. Certain common chemicals are linked to cancer, infertility, diabetes, Parkinson's and other illnesses. Pregnant woman, infants, and children are especially vulnerable. Under the current law, Americans are exposed to thousands of chemicals every day, only a small fraction of which have ever been adequately reviewed for safety. TSCA is so badly broken that EPA is virtually powerless to restrict even known deadly carcinogens such as asbestos.

Fred Krupp, President of Environmental Defense Fund, said:

“Americans shouldn’t have to worry whether chemicals in their homes pose a threat to their families. With lawmakers coming together from both sides of the aisle, this is the best chance in a generation for us to move past an obsolete and badly broken law to provide strong protections for all Americans. We look forward to working with Senator Udall, the environmental community and other stakeholders to get the strongest bill possible enacted into law. Congress cannot afford to let this historic opportunity slip from its grasp. We owe it to our children and grandchildren to seize the moment and act."

The new legislation would update the current law and give EPA the tools it needs to ensure the safety of chemicals and significantly strengthen health protections for American families. Notably, the bill:

Mandates safety reviews for all chemicals in active commerce

Requires a safety finding for new chemicals before they can enter the market

Explicitly requires protection of vulnerable populations like children and pregnant women

Gives EPA enhanced authority to require testing of both new and existing chemicals

Sets aggressive, judicially enforceable deadlines for EPA decisions

Makes more information about chemicals available by limiting companies’ ability to claim information as confidential, and by giving states and health and environmental professionals access to confidential information they need to do their jobs

Provides for the payment of fees by companies to ensure EPA has the resources to carry out its responsibilities

Ramps up the number of chemicals undergoing safety assessments from an initial 10 to at least 25 chemicals, after all procedures and fees are in place to support the increased level of work

The new legislation is nearly two years in the making and is built on a bill introduced by the late New Jersey Senator Frank Lautenberg and Senator David Vitter in 2013. Negotiations have yielded hundreds of improvements to the original bill.

The new bill significantly reduces the earlier proposal’s preemption of state laws: All state actions taken before 2015 remain intact regardless of subsequent EPA actions. Even after enactment, states can act to restrict a chemical until and unless EPA takes up that same chemical and addresses the same uses. State actions that do not restrict a chemical’s production, distribution or use, or are taken to address a different problem are not affected. No preemption attaches to low-priority designations of a chemical by EPA.

“After nearly four decades under a failed law, this legislation would finally provide EPA with the tools it needs to better protect American families,” said Dr. Richard Denison, Lead Senior Scientist at Environmental Defense Fund. “Rare political circumstances have opened a narrow window to pass meaningful reform that protects the health of American families. It’s essential Congress act now.”

Environmental Defense Fund (edf.org), a leading national nonprofit organization, creates transformational solutions to the most serious environmental problems. EDF links science, economics, law and innovative private-sector partnerships. Connect with us on EDF Voices, Twitter and Facebook.

[This post is adapted from comments I gave at a recent Friday Forum hosted by the American Bar Association’s Pesticides, Chemical Regulation and Right-to-Know Committee.]

Elections change some things and don’t change others. That is certainly true about what happened on Nov 4.

The best election recap I’ve heard came from a hairdresser I overhead when getting my hair cut last week. She said: “Democrats win, I have to work; Republicans win, I have to work.”

I doubt anyone would try to argue that the election was in any way about or directly relevant to the TSCA reform debate, or even any sort of more general referendum on the environment. My view is that it wasn’t really even much about political parties and which one controls the Senate – it was more of a “throw the bums out and let some new ones have a try” election.

On the other hand, it was about broad and deep dissatisfaction of voters with the inability of Washington to get anything meaningful done. That is relevant to the opportunity the TSCA reform issue presents to the new Congress, which is one of a handful of issues that seems to have the potential to show voters that something can get done.

There is also no question that the dynamics that have determined for some time the pace and direction of the TSCA reform debate changed significantly with the switch to Republican control of the Senate. That brings with it new political opportunities and challenges.

But what I want to talk mostly about is what HASN’T changed. Read More »